SHERIFFS ‑- FEES ‑- MILEAGE

SHERIFFS ‑- FEES ‑- MILEAGE

A sheriff may not, under the 13th paragraph of RCW 36.18.040, charge mileage fees for an unsuccessful attempt to serve an individual in addition to mileage fees charged on a second trip when service was successfully made.

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                                                              September 18, 1956

Honorable Lee J. Reynolds
Prosecuting Attorney
Clallam County
Kuppler Building
Port Angeles, Washington

                                                                                                              Cite as:  AGO 55-57 No. 318

Dear Sir:

            Your letter of August 16, 1956, previously acknowledged, requested the opinion of this office on the following question which we paraphrase as follows:

            May a sheriff, under the 13th paragraph of RCW 36.18.040, charge mileage fees for an unsuccessful attempt to serve an individual in addition to mileage fees charged on a second trip when service was successfully made?

            We answer your question in the negative.

                                                                     ANALYSIS

            The statute involved in this question, (RCW 36.18.040), reads in pertinent part as follows:

            " Sheriffs shall collect the following fees for their official services: For service of each summons and complaint, and return thereon, on each defendant, besides mileage, one dollar;

             [[Orig. Op. Page 2]]

            "For making a return of 'not found' in the county upon a summons, besides mileage actually traveled, one dollar;

            "For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, one dollar;

            "For filing copy of writ of attachment or writ of execution with auditor, one dollar plus auditor's filing fee;

            "For chattel mortgage foreclosure (short form), levy one dollar; posting notice, two dollars; service of notice, one dollar;

            "For serving writ of possession or restitution without aid of the county, besides mileage, one dollar and fifty cents;

            "For serving writ of possession or restitution with aid of the county, besides mileage, two dollars and fifty cents;

            "For service and return of subpoena, upon each person served, besides mileage, fifty cents;

            "For summoning each juror, besides mileage, fifty cents;

            "For serving an arrest warrant in any action or proceeding, besides mileage, two dollars;

            "For serving or executing any other writ or process in a civil action or proceeding, besides mileage, one dollar;

            "For taking and approving any bond, in a civil action or proceeding, required by law to be taken or approved by him, except indemnity bonds, one dollar;

            "For each mile actually and necessarily traveled by him in going to or returning from any place of service, ten cents;" (Emphasis supplied.)

            The rule controlling this question was stated by this office in an opinion discussing sheriffs' fees in general, directed to Mr. J. F. Murphy, Prosecuting Attorney for King County, and dated August 6, 1912, to wit:

            "The general rule is that a sheriff has no right to mileage in attempting to serve process which is not actually served  [[Orig. Op. Page 3]] and even though he ultimately serves the process he cannot charge mileage for previous unsuccessful attempts.  The only exception to this rule is the provision in the fee bill providing for a charge for a return of 'not found' in the county upon a summons.  The place of actual service determines the mileage to be charged."

            This rule is still controlling on this question, although the session law of 1907, § 1, chapter 56, pertaining to sheriffs' fees was amended in 1951 by § 1, chapter 6, Laws of 1951, because the paragraph "For each mile actually and necessarily traveled by him in going to or returning from any place of service, ten cents," was also present in the 1907 law which the above quoted rule was based upon.

            While the aforementioned opinion did not cite authority to substantiate this rule, it appears to be in accord with the prevailing opinion in this country.

            Anderson on Sheriffs, Coroners, Constables, Volume 2, § 721 entitled:  "An officer is entitled to collect compensation for necessary legal services only" stated:

            "* * * So if process, as attachment or execution, is not served there cannot be a charge for fees, services, mileage or expenses, as a rule; a shorthand rendition of the rule is 'if there is no service, there are no fees'.  The cause of failure to serve process is immaterial in so far as making a charge by an officer is concerned."

            InSchneider v. Waukesha County, 103 Wis. 266, the court in dismissing sheriff's mileage fees, stated:

            "It is a familiar law that he (the sheriff) can only recover the fees which the statute gives him * * *

            "The general rule undoubtedly is that, where there is no service, there are no fees, unless they be expressly given by statute."

            It is the opinion of this office that the paragraph "For each mile actually and necessarily traveled by him in going to or returning from any place of service, ten cents;" indicates the measure by which a charge is to be  [[Orig. Op. Page 4]] made by the sheriff for mileage in performing the several types of service mentioned in the preceding paragraphs of RCW 36.18.040.

            We hope the foregoing will be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

ROY C. FOX
Assistant Attorney General